IN THE UNITED STATES DISTRICT COURT 


FOR THE EASTERN DISTRICT OF PENNSYL V ANlA 


ELAINE SCATTERGOOD CIVIL ACTION 


v. 

LEE BILLITER, et al. NO. 05-3073 

MEMORANDUM AND ORDER 

Ditter, J. December 3, 2010 

Defendants have moved to dismiss this action based on a failure to prosecute. They do so 

following Ms. Scattergood's absence from a court-ordered conference whereby she was cautioned 

that her absence would result in dismissal. Ms. Scattergood opposes the motion, asserting that 

medical problems prevented her attendance. For the reasons that follow, I will deny the motion 

to dismiss. 

"Dismissal is a drastic sanction and should be reserved for those cases where there is a 

clear record of delay or contumacious conduct by the plaintiff." Poulis v. State Farm Fire & 

Casualty Co., 747 F.2d 863, 866 (3d Cir. 1984) (internal quotations and citation omitted). 

Nonetheless, dismissal may be appropriate after balancing the following factors: 

(1) the extent ofthe party's personal responsibility; (2) the prejudice to the 

adversary caused by the failure to meet scheduling orders and respond to 

discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the 

attorney was willful or in bad faith; (5) the effectiveness of sanctions other than 

dismissal, which entails an analysis of alternative sanctions; and (6) the 

meritoriousness of the claim or defense. 

Id. at 868. 

Here, factors 1, 2, 3, and 6 weigh in favor of dismissal. Ms. Scattergood is proceeding 

pro se and is therefore personally responsible for her failure to comply with court-ordered 

discovery deadlines and to attend court-ordered conferences. The defendants are prejudiced by 

the continued delays and Ms. Scattergood's failure to respond to discovery requests. Indeed, the 
initial discovery deadline required Ms. Scattergood to comply with defendants' document 

requests and interrogatories by August 11, 2008 and directed her to serve her own document 

requests and interrogatories by July 21, 2008. However, at Ms. Scattergood's requets, and over 

the objections ofthe defendants, the discovery deadlines were repeatedly continued. Ms. 

Scattergood has yet to answer the defendants' discovery requests or serve her own requests. 

Ms. Scattergood has exhibited a pattern of delay, requesting numerous extensions and 

failing to respond to discovery requests that have been outstanding for more than 18 months. 

Finally, Ms. Scattergood's claims, which are difficult to decipher but appear to be prosecutorial 

misconduct, false imprisonment and false arrest, have uncertain merit because ofthe possible 

difficulties in proving these claims. 

The fourth factor is neutral, as there is no showing that Ms. Scattergood's delays are in 

bad faith or willful attempts to thwart the defendants. However, Ms. Scattergood's regular 

contact just after deadlines have passed and her repeated requests for extensions on the eve of 

deadlines does shade more towards dismissal on the neutral spectrum. 

Lastly, in evaluating alternative sanctions, I am mindful that Ms. Scattergood is 

proceeding pro se and does not have the means to pay fines for her failure to obey court orders 

requiring her to respond to discovery and attend conferences. Dismissal, although a drastic 

sanction, is the only sanction available. 

The status conference scheduled for February 10,2010 was cancelled due to snow and 

Ms. Scattergood has been alternatively unreachable or absent from scheduled conferences and 

court ordered discovery obligations since that date. Despite providing notice in early June that 

she intends to prosecute this matter, Ms. Scattergood has failed to provide her availability for 

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telephone conferences and failed to participate in those conferences even under threat of 

dismissaL 

Nonetheless, dismissal is premature. Ms. Scattergood regularly attended conferences 

prior to January 2010, when she asserts she was diagnosed with cancer, and she has engaged in 

discovery and provided documents to the defendants. Therefore, I will instead require that Ms. 

Scattergood make herself available for deposition on or before January 14,2011 and set the close 

of all discovery for February 15,2011. While I am sympathetic to Ms. Scattergood's medical 

issues, car troubles, and inability to retain counsel, I have been more than generous in 

accommodating her schedule, under objection from the defendants to repeated continuations, and 

I have provided ample time for discovery. No further extensions will be granted and failure to 

meet the deadlines set below will result in dismissal ofthis action. 

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